ROBINS/KAPLAN. 800 LASALLE AVENUE

612 349 8500 TEL

SUITE 2800

612 339 4181 FAX

MINNEAPOLIS MN 55402

ROBINSKAPLAN.COM

JENNIFER M. ROBBINS

612 349 8711 TEL

JROBBINS@ROBINSKAPLAN.COM

December 2, 2015 Via Email and Certified U.S. Mail

Teresa Lynn Petter Wolves-Woods & Wildlife Fur-Ever Wild 10132 235th Street, W. Lakeville, MN 55044 Email: fureverwild@gmail.com; terri@fureverwild.org

Hon. Sally Jewell Secretary U.S. Department of the Interior 1849 C Street, N.W. Washington, DC 20240 Email: exsec@ios.doi.gov; feedback@ios.doi.gov

Re: Notice of Intent to File Suit for Violations of the Endangered Species Act

Dear Ms. Petter and Ms. Jewell:

I write to you on behalf of my clients, the Animal Legal Defense Fund (ALDF) along with its membership, and Bonnie Poyer. This letter serves as notice pursuant to Section 11(g) of the Endangered Species Act ("ESA" or "the Act"), 16 U.S.C. § 1540(g). We demand that you and Fur-Ever Wild (collectively, "Fur-Ever Wild") stop killing and skinning the protected wolves in your possession and we are prepared to sue for violations described herein if Fur-Ever Wild fails to agree to remedy the same within 60 days.

I. REQUIREMENTS UNDER THE ENDANGERED SPECIES ACT

The ESA is designed to protect listed endangered or threatened species from extinction brought about by "economic growth and development untempered by adequate concern and conservation."' The purpose of the ESA is to provide means to conserve ecosystems

'See 16 U.S.C. § 1531(a)(1).

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relied upon by those endangered and threatened species and create programs to ensure the species' survival. Congress "afforded endangered species 'the highest of priorities.'" 2

To enforce the ESA's mandates, Congress enables private parties to bring suit under the Act to enjoin any person in violation of its provisions as long as sixty days' notice is provided to the violator and to the Secretary of the Interior. 3

A. The Section 9 "take" provision is defined to include killing protected animals.

Section 9 of the ESA prohibits the "take" of an endangered species by any person, making it unlawful to "possess, sell, deliver, carry, transport or ship, by any means whatsoever, any such species." 4 "Take" is defined broadly to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 5 Animals protected under the ESA are further protected under the "harm" designation of take, defined as "an act which actually kills or injures wildlife." 6 Any wildlife protected under the ESA that a violator kills is thus subject to criminal or civil liability.

B. The Section 9 "take" provision applies to both wild and captive species.

ESA's Section 9 applies equally to these endangered or threatened species regardless of whether they live in captivity or the wild. The ESA defines species protected under the "take" provision as "any member of the animal kingdom." 7 The United States Fish and Wildlife Service ("FWS"), which oversees enforcement of the ESA, has repeatedly explained that the ESA "applies to both wild and captive populations of a species," 8 and courts have upheld this directive. 9

2 Defenders of Wildlife v. Adm'r, EPA, 882 F.2d 1294, 1300 (8th Cir. 1989). 3 See 16 U.S.C. § 1540(g). 4 See id. at § 1538(a). 5 Id. at § 1532(19) (emphasis added). 6 50 C.F.R. § 17.3. 7 16 U.S.C. § 1532(8). 8 44 Fed. Reg. 30044 (May 23, 1979), see also 63 Fed. Reg. 48634, 48636 (Sept. 11, 1998) (explaining that Congress defined "take" to apply to endangered or threatened wildlife "whether wild or captive" and that the "statutory term cannot be changed administratively"); 80 Fed. Reg. 7380, 7388 (Feb. 10, 2015) (final rule listing Lolita as a member of the Endangered Southern Resident Killer Whale Distinct Population Segment) ("Congress recognized the value of captive holding and propagation of listed species held in captivity but intended that such specimens would be protected under the ESA, with these activities generally regulated by permit."). 9 See, e.g., Safari Club Int? v. Jewell, 960 F. Supp. 2d 17, 30 (D.D.C. 2013) (finding "listings are made without distinction between wild or captive populations, populations of native or non-native species or species that are bred in captivity") (internal citations omitted).

December 2, 2015 Via Email and Certified U.S. Mail Page 3

II. FUR-EVER WILD IS VIOLATING THE ENDANGERED SPECIES ACT

Once a species is desi nated as endangered or threatened, the ESA's protections and regulations are triggered. 1 The Gray Wolf, canis lupus, is a listed species under the ESA." An endangered species since 1978, listed as threatened in Minnesota, the FWS describes the wolf as "an integral component of the ecosystems to which it typically belongs." 12 Kept in captivity or in the wild, an individual who performs a take of a wolf, for instance by harming or harassing it, is in violation of the ESA's Section 9 and subject to civil or criminal penalties under the Act. 13

Fur-Ever Wild is in violation of the ESA's Section 9 for its systematized taking of protected wolves. Fur-Ever Wild's wildlife exhibition and fur-harvesting business exploits wolf pups by first using them as an attraction in the company's petting zoo, then later skinning them for their fur—in the process killing them in direct violation of the ESA's prohibition on taking.

Fur-Ever Wild documents this taking and has created a lengthy paper trail detailing its intentional takings of wolves. Its Commercial License Applications to the Minnesota Department of Natural Resources depict the calculated breeding program of protected wolves as the company aimed to acquire a wolf population that could generate consistent replacements for those animals to be killed and skinned for fur. In filings submitted early in the company's formation, such as from 2011-2012 and 2008-09, as the company was building its cache of fur producing wolves, only wolf purchases and births are entered in its filing. As a carrying capacity was reached, Fur-Ever Wild began killing its wolves. For example, for the period covering March 1, 2014 to February 28, 2015, the company notes 19 wolves born and 19 "deaths." 14 The application for years 2012-2013 noted 24 "wolf/coyote" births and 8 deaths. Each of these deaths are takes under the ESA.

That these deaths are not attributable to natural causes is clear when considering the normal lifespan of captive gray wolves. Gray wolves on average live between 6 and 8 years, and as long as 13 years, in the uncertain conditions of the wild. In captivity, such as

10 See United States v. Town of Plymouth, Mass., 6 F. Supp. 2d 81, 90 (D. Mass. 1998); see also Safari Club Intl, 960 F. Supp 2d at 30 ("When a species ... is listed as either 'threatened' or 'endangered' under the [ESA], it is then subject to a host of protective measures designed to conserve the species.) (citing Safari Club Int? v. Salazar, 709 F.3d 1, 2 (D.C.Cir. 2013)). "See 50 C.F.R. § 17.11 (listing "Wolf, gray" under the "List of Endangered and Threatened Wildlife" subject to the ESA's protections). 12 Gray wolf (Canis lupus), U.S. FISH & WILDLIFE SERVICE, http://ecos.fws.gov/speciesProfile/profile/speciesProfile.action?spcode=AOOD (last accessed Dec. 1,2015). 13 See 16 U.S.C. § 1540(a)—(b). 14 See Commercial License Application, Minn. Depi't Natural Resources (attached).

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at Fur-Ever Wild's fur farm, wolves can live up to 17 years. I5 Fur-Ever Wild stated to the Minnesota government that 19 wolves died in the 2014-2015 period, an impossible scenario if they are claimed to have expired from natural causes. Additionally, even if natural causes contributed to these protected wolves' deaths, Fur-Ever Wild's gross failure to care for these animals is evident in the otherwise inexplicable loss of 19 animals, an event that would not occur in a facility adhering to ESA's prohibition on take.

That Fur-Ever Wild is killing wolves in violation of ESA's Section 9 and in direct contradiction to the law's stated purpose is not mere speculation, but is attested to by the company's owner and operator, Teresa Lynn Petter ("Terri Petter" or "Petter"). In a 2012 deposition taken on behalf of the town of Eureka, Petter acknowle4ted she selectively determines when to skin her animals depending on the fur market."' Petter stated that she does not always wait until an animal naturally dies to harvest their fur, and discusses skinning two wolves the previous night and predicting another 25 wolves would be skinned within a span of three weeks." In the absence of premonitory powers of these wolves' natural deaths, Petter acknowledges she kills, and thereby "takes," protected wolves.

A. Fur-Ever Wild is not exempt from liability for a "take."

As a component of one of the ESA's main goals to achieve "recovery of species to the point at which the protection of the ESA is no longer necessary," I8 the Department of the Interior is empowered to "take measures to protect species at risk of extinction." I9 One such measure is the Section 10 permitting program, in which the FWS may make exceptions to certain prohibitions listed in Section 9. For instance, while a "taking" of an endangered species is generally prohibited, the ESA allows discrete instances of takings through a permitting program. A FWS "incidental take permit" allows a take that "is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity[,]" 2°

"for scientific purposes or to enhance the propagation or survival of the affected

20

species."2I

15 See Gray Wolf Fact Sheet, NATURE (Apr. 13, 2012), http://vvvvw.pbs.org/wnet/nature/river-of-no-return-gray-wolf-fact-sheet/7659/. 16 See Deposition of Teresa Lynn Petter by attorneys Stephanie A. Angolkar and Chad D. Lemmons on behalf of Town of Eureka, December 19, 2012, P. 24 (attached). 17 See Deposition of Teresa Lynn Petter by attorneys Stephanie A. Angolkar and Chad D. Lemmons on behalf of Town of Eureka, December 19, 2012, p. 25. 18 See M. Lynne Corn et al., Cong. Research Serv., RL31654, THE ENDANGERED SPECIES ACT: A PRIMER, 5 (2012). 19 See Safari Club Ina, 960 F. Supp. 2d at 28 (citing Otay Mesa Prop., L.P. v. US. Dep't of Interior, 646 F.3d 914, 915 (D.C.Cir.2011)). 20 16 U.S.C. § 1539(a)(1)(B). 21 16 U.S.C. § 1539(a)(1)(A).

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Relevant here, the FWS has promulgated regulations governing an incidental take permit aimed at "enhance[ing] the propagation or survival" of captive-bred wildlife. 22 If FWS grants an individual permit, a person may "take; export or re-import; deliver, receive, carry, transport or ship in interstate or foreign commerce, in the course of a commercial activity.. . any endangered wildlife that is bred in captivity in the United States provided that[,]" among other things, "Nile purpose of such activity is to enhance the propagation or survival of the affected species." 23

Without this limited exception, an individual may not impose a taking on a protected animal. To my clients' knowledge, Fur-Ever Wild has never obtained an incidental take permit that would allow any takings despite its past instances of killing wolves. Even if Fur-Ever Wild applied for an incidental take permit, they fail to qualify. The self-described "agricultural farm" 24 is not performing a take that is "merely incidental to" an otherwise lawful activity, is not "enhanc[ing] the population or survival of the affected species," nor has Fur-Ever Wild devised a conservation plan approved by the Secretary of the Interior—all necessary components for a permit. 25 Fur-Ever Wild's routine killing of wolves, in fact, results in a detriment to the conservation of the species.

III. FUR-EVER WILD MUST IMMEDIATELY CEASE VIOLATING THE ENDANGERED SPECIES ACT

Terri Petter and Fur-Ever Wild must stop the intentional killing and harvesting of wolves at their agricultural farm. There is broad public support to stop their continual taking of wolves that visitors pay to see at the company's "pet-and-plays," and for whom they donate money or materials believing they are supporting the maintenance of this threatened species. 26 Not only does allowing these wolves to live out their natural lives conform to the requirements of the ESA, it also makes good business sense for the company to support, rather than undermine, the continued existence of this threatened species.

IV. CONCLUSION

This letter is notice under section 11(g) of the ESA, 16 U.S.C.§1 540 (g), of violations of the ESA on wolves in possession of Fur-Ever Wild discussed herein. Unless Fur-Ever Wild can adequately demonstrate that ongoing and imminent violations are remedied and

22 See 50 C.F.R. § 17.21(g). 23 See 50 C.F.R. § 17.21(g). 24 See FUR-EVER WILD, http://wwwfureverwild.org/. 25 16 U.S.C. § 1539(a)(1)–(2). 26 See Stop fur farm from exploiting and killing wolf pups, CHANGE.ORG, https://vvww.change.org/p/stop-fur-farm-from-exploiting-and-killing-wolf-pups (last accessed Dec. 1, 2015) (listing 144,750 supporters opposing the killing of Fur-Ever Wild's wolves for fur).

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abated within sixty (60) days, we intend to file suit against Fur-Ever Wild to enforce the provisions of the ESA and enjoin future takes on the ESA protected wolves.

Very truly yours, r

Jennifer M. Robbins

cc: Christopher W. Madel Cassandra M. Batchelder

Enclosures

86307831.1